Friday, February 19, 2021

The Prosecutor's Story

Prosecutors say that they only charge people when they have a strong case.
  • Is it true?
  • Is it trash talk, like that of basketball players?
  • Is it legitimate public relations?
  • Is it a form of jury tampering? 
I was listening to a former federal prosecutor recently discussing whether the twice-impeached, former POTUS would be prosecuted for his criminal behavior. I want exPOTUS45* to be held responsible for the many harms he has caused and his civil, moral, and criminal misdeeds. I was a bit disheartened by the commentator's presentation, which seemed to say that there was a less than 100% chance of some of the prosecutions I hope to see.

Then, my defense attorney conscience kicked in and asked me the questions above.

Despite the presumption of innocence set out in our Bill of Rights and taught as an essential part of our government legal systems, jurors and even judges often come to the process of adjudicating the facts of a case with an assumption that the defendant wouldn't be here, the government wouldn't have brought a case against them, law enforcement personnel wouldn't have arrested them, child protective services wouldn't have taken their children away, if they didn't do anything wrong.

I suppose it's natural for people who have never been wrongly accused or who have been taught in school or by popular media that law enforcement personnel follow the law and the evidence and, like the Royal Canadian Mounted Police, "always get their man," to believe where there's smoke, there's fire or when there's a case something bad happened.  Hearing the prosecutors' drumbeat that they won't charge without a strong case made me worry that it would overwhelm the presumption of innocence for most audiences. It would be consistent with their preconceived notions of justice and the legal system.

The concept of confirmation bias says that people more readily accept ideas that are consistent with what they already believe. The concept of cognitive dissonance says that people tend to reject ideas that do not conform to their preconceived notions.

I think it would be improper for a prosecutor to include an assertion about the inherent strength of a case in an opening statement or closing argument. It may even be improper to ask a witness a question that would produce such a self-affirming response.

But doesn't the statement have a similar effect, of degrading the presumption of innocence, when the vast majority of jurors and judges hear it or read it every day from the news sources they seek out and trust?